United States District Court, E.D. Arkansas, Pine Bluff Division
FINDINGS AND RECOMMENDATION
following recommended disposition has been sent to United
States District Judge James M. Moody Jr. You may file written
objections to all or part of this Recommendation. If you do
so, those objections must: (1) specifically explain the
factual and/or legal basis for your objection; and (2) be
received by the Clerk of this Court within fourteen (14) days
of this Recommendation. By not objecting, you may waive the
right to appeal questions of fact.
Crift (“Crift”) seeks a writ of habeas corpus
pursuant to 28 U.S.C. §2254. Crift is currently in the
custody of the Arkansas Department of Correction (ADC) after
a Jefferson County jury convicted him of first-degree murder
in February 2017. He was sentenced as an habitual offender to
65 years' imprisonment. Crift's direct appeal was
denied by the Arkansas Court of Appeals on January 24, 2018.
Crift v. State, 2018 Ark.App. 15. The sole argument
raised on direct appeal was trial court error in declining to
instruct the jury on manslaughter as a lesser-included
offense of capital murder and first-degree murder. Crift did
not seek discretionary review by the Arkansas Supreme Court,
and the Arkansas Court of Appeals' mandate issued on
February 13, 2018.
April 18, 2019, Crift filed his federal habeas corpus
petition, alleging the following claims for relief:
1. His conviction was not supported by sufficient evidence;
2. His Fifth Amendment right not to incriminate himself was
3. He was denied his right to testify against witness Arthur
Paylor, who Crift alleges committed the crime.
Wendy Kelley (“Kelley”) contends that the statute
of limitations bars consideration of these claims, and she
asserts that all claims are also procedurally barred due to
Crift's failure to adequately raise them in state court.
By Order dated July 29, Crift was notified of his opportunity
to address Kelley's arguments, and he has responded.
Docket entry no. 13. The Court will initially consider if
Crift's petition is timely filed.
of the limitations period and statutory tolling.
101 of 28 U.S.C. 2244 (as amended) imposes a one year period
of limitation on petitions for writ of habeas corpus:
(1) A 1-year period of limitation shall apply to an
application for a writ of habeas corpus by a person in
custody pursuant to the judgment of a State court. The
limitation period shall run from the latest of--
(A) the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for
seeking such review;
(B) the date on which the impediment to filing an application
created by State action in violation of the Constitution or
laws of the United States is removed, if the applicant was